The Patriot Post® · Abusive Gerrymandering Can Be Stopped, but Not by Judges

Two of the oldest traditions in U.S. political history are at the heart of Gill v. Whitford, a case now before the Supreme Court.

One of those traditions is gerrymandering — the mapping of legislative districts so that they become one-party monopolies. The other tradition is condemning such mapmaking as a cancer on American democracy.

Lawmakers have been manipulating election maps to their political advantage from the Republic’s earliest days. When Elbridge Gerry (signer of the Declaration of Independence, delegate to the Constitutional Convention) was governor of Massachusetts in 1812, his allies drew the state’s congressional lines to favor their party, the Republican-Democrats, stacking the deck against the opposition Federalists. Infuriated Federalists blasted the map’s ungainly new districts, especially one in Essex County that resembled a salamander. A cartoonist drew it with wings and claws, and the “gerry-mander” was born.

Both parties engage in gerrymandering when it suits their interests; both parties denounce gerrymandering when it thwarts those interests. In 1987, President Ronald Reagan inveighed against the partisan cartography of California Democrats, who had “so rigged the electoral process that the will of the people cannot be heard.” In the latest election, Reagan complained, Republican candidates had gotten most of the votes, yet Democrats won most of the seats.

The identical complaint, with the parties reversed, is at play in the current case. After the 2010 Census, the GOP majority in Wisconsin’s legislature gerrymandered state assembly districts so effectively that, in the 2012 elections, Republicans won 60 percent of the seats despite drawing only 48.6 percent of the votes.

There is agreement across the board that gerrymandering is a bipartisan sin, one that has only grown worse with modern computer-aided algorithms and mapping software. The damage gerrymandering does to democratic accountability — to the people’s right to choose their representatives — is widely resented. Polls consistently show that majorities of voters think legislative maps drawn by legislators are unfair.

Partisan gerrymanders are a large part of the reason contemporary politics have grown so toxic. As Senators John McCain and Sheldon Whitehouse argue in a friend-of-the-court brief, the proliferation of ultra-safe legislative seats has led “to a more polarized and dysfunctional political climate. In safe districts, an incumbent’s biggest threat is often a primary challenge from a more extreme member of his or her own party. This threat makes legislators reluctant to work across the aisle and support bipartisan legislation.”

Thanks to hyperpartisan redistricting, competitive elections for the House of Representatives have largely disappeared. About 90 percent of incumbents are routinely re-elected. The average margin of victory is around 65 percent. Gerrymandering has made a sham of most congressional elections. Whatever else the House of Representatives is, it isn’t representative.

The malady is easy to diagnose. The remedy is a different matter.

The plaintiffs in Gill are asking the Supreme Court to declare overly partisan redistricting unconstitutional, on the grounds that it deprives voters of the equal protection guaranteed by the 14th Amendment. Heretofore, the court has resisted such pleas, considering it improper for the judiciary to insert itself into partisan skirmishing. In Justice Felix Frankfurter’s formulation, “Courts ought not to enter this political thicket.” That is still sound advice.

Yes, redistricting is noxious. Yes, it makes American politics worse. But not every problem is one that courts can solve. The Constitution explicitly, and wisely, leaves the details of organizing congressional elections to the political branches: “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”

Political gerrymandering should be replaced with a fairer system. But it’s up to the states and Congress, not judges, to make that happen. Judicial confirmation battles are already bruising and unpleasant. Imagine how much uglier they will become if judges become the arbiters of whether political maps are too, er, political.

The best alternative to gerrymandering is to take redistricting away from politicians and entrust it to an independent commission. It isn’t an impossible dream: Three states (California, Arizona, and Iowa) already use such commissions. If voters elsewhere really object to gerrymandering — not just when pollsters ask about it — they have the power to force change. Let the pressure for reform grow sufficiently acute and abusive mapmaking will be curtailed. But that pressure has to come from below. This is a political ill, to be healed by political means.

Jeff Jacoby is a columnist for The Boston Globe.